Tuesday, July 21, 2009

A Different Kind of "Wardrobe Malfunction"

Any list of most influential books of the 20th century must include George Orwell's 1984. And the world that is described -- with oversight of private lives, double-speak, and torture -- is one that seems, given the modern world, to be coming closer and closer.

So it not surprising that Amazon, which is trying to convert readers from paper-and-binding physical books to its new Kindle e-book reader, would want to offer the classic work. In keeping with the Brave New World of Web 2.0, Amazon allows alleged copyright holders to essentially self-publish, by uploading works to its Kindle site, to then be purchased by Kindle owners.(*)

(*-The economics of Kindle publishing are interesting, and worth further exploration: apparently Amazon claims 70% of revenue from newspaper sales, and a right to further distribution. Nonetheless newspapers are lining up to be part of this "new revenue stream" despite getting the short end of the proverbial stick. Well, if there's one thing that the last 10 years have proven, it's that newspapers can adapt to a post-local-monopolistic world. Oh wait.)

But self-publishing(**) carries its own risks, including the possibility that a judgment-proof entity can upload content for distribution that it does not actually own. That's exactly what apparently happened when MobileReference, which is owned by an entity called SoundTells, uploaded its version of 1984 and Orwell's "Animal Farm"; unfortunately for Amazon, Houghton Mifflin Harcourt, not MobileReference, owns the American rights to both Orwellian works.

(**-Amazon also allows its Kindle owners to effectively "self-publish" but sending themselves via email a text that is then converted to a Kindle-friendly-format. Undoubtedly some of these conversion are of text for which the Kindle user in question does not have proper rights. Amazon's exposure there, however, is not certain.)

What happened next re-defined the oft misused concept of irony: Amazon removed the illicit copies of 1984 from its Kindle storefront, which made sense because Amazon was at risk for copyright infringement damages. But Amazon didn't stop there. It also took the unprecedented step of deleting copies of the books from individual Kindles. Poof! (***)

(***- Amazon did have the common sense to refund its customer's purchases. It should also be noted that even under the terms of its license agreement with its Kindle customers, Amazon did not have the right to delete material because it granted to its customers the right to a "permanent copy of the applicable digital content.")

There is no clear analogy in the 'old-fashioned' world to what Amazon did. If a book seller went to your house to reclaim a illicit copy of a physical book, you would have an action for (among other things) trespass. Even recalls in the case of faulty products depend on customer's voluntarily returning the goods in question to the manufacturer (or retailer) for a new product or refund.(****)

(****-"Voluntary" recalls refer to the voluntary action by the good manufacturer, not the end-user.)

Even given the apparent violation of the terms of its own (self-serving) license agreement(*****), Amazon will probably not face extensive litigation risk; it probably sold very few copies of the illicit texts through MobileReference, and Houghton Mifflin may not pursue the matter.

(*****-In fairness, most 'shrink-wrap' license agreements are self-serving; courts generally have allowed them to be enforced despite the fact that few, if any, users actually read them. Instead, a click-through "I Agree" page is usually binding.)

But the incident does create a business problem for Amazon: one of the the good features about the Kindle is that you keep a record of your reading on Amazon's computers (in case you delete -- either accidentally or otherwise (i.e., for memory space reasons)). But the ability of a corporation to delete your personal reading material -- for copyright or other reasons -- brings to mind its own version of "Big Brother."

It also reminds one of the infamous Justin Timberlake/Janet Jackson "wardrobe malfunction" incident in 2004 at the Super Bowl. At the time, TiVo's flacks rushed out with the statement that the incident was the "most watched" event in the history of the recording device; but in a case of shooting-oneself-in-the-foot, that very metric raised the question of how TiVo's management knew that fact. And what else did they know about the viewing habits of their customers?

A few days later, a more-chagrined TiVo had to reassure its customers that the individual information of viewing habits were not being monitored; but the spectre of such monitoring -- and what it means for privacy -- still lingers in the air five years later.

Amazon can't make such an 'aggregation' claim; its records indicate clearly who bought what reading material, and what material is actively on the particular Kindle device.

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